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ELCPartially AllowedNot stated in the judgment (Environment and Land Court suit filed 30th November 2012)· [2024] KEELC 1150 (KLR)

Kirunyu v Joreth Limited & another (Environment & Land Case 920 of 2012) [2024] KEELC 1150 (KLR)

Environment and Land Court
29 February 2024
10,487 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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A Nairobi family that occupied land for over 33 years won it through adverse possession, even though a later buyer's registered title was struck down for fraud.

What this practically means

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Executive summary

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The Plaintiff sued seeking a declaration of adverse possession, a permanent injunction and specific performance over L.R. No. 13330/597 at Thome, Nairobi, alleging an oral purchase from Joreth Limited (1st Defendant) in 1975 and occupation since 1979, having bought through Thome Farmers No. 5 Limited. Both Defendants denied the sale; the 1st Defendant claimed it never sold to Thome Farmers and rescinded any agreement for non-payment; the 2nd Defendant, Alpha Realty Company Limited, claimed to be a bona fide purchaser for value registered in 2014, and both Defendants counterclaimed for eviction, injunction and damages. The court framed five issues: competency of the suit (Order 37 Rule 7), validity of the oral contract, adverse possession, the counterclaims, and costs. It held a plaint is competent for adverse possession claims. It found the transfer to the 2nd Defendant was registered on 4th September 2014 in contempt of a consent order of 18th February 2013 barring dealings and despite an unremoved caveat, amounting to fraud and defeating indefeasibility. The oral contract failed for want of proof and payment, so specific performance was refused. However, time for adverse possession ran from 29th July 1979; the Plaintiff's open, exclusive, continuous and non-permissive occupation exceeded 12 years and was not interrupted by HCCC No. 6206 of 1992, to which he was not party. Judgment was entered for the Plaintiff: a declaration of adverse possession, rectification of the register substituting his name for the 2nd Defendant's, a permanent injunction, and costs of the suit and counterclaims against the Defendants.

Key legal issues

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01

Whether the adverse possession claim was defective for failure to commence by Originating Summons under Order 37 Rule 7

Holding

The suit was not fatally defective; adverse possession can be raised by plaint, counterclaim or defence, and the complex contested issues here could not adequately be ventilated by originating summons

Reasoning

The court relied on Court of Appeal authority establishing that Order 37 Rule 7 requires originating summons only where a party applies to be registered as proprietor by adverse possession as a standalone claim. Where, as here, the amended plaint raised additional prayers (specific performance, injunction) requiring viva voce evidence, a plaint is appropriate. Originating summons procedure is reserved for simple matters and no party would suffer prejudice if the suit proceeded to full trial.

p. 10
02

Whether the registration of the transfer to the 2nd Defendant during the pendency of a court order and a caveat invalidated the title

Holding

Both Defendants knowingly registered the transfer on 4th September 2014 despite the consent order of 18th February 2013 barring dealings and despite an unremoved caveat; the registration was contemptuous, fraudulent and the 2nd Defendant's title is not indefeasible

Reasoning

The court file showed the application for registration was lodged in October 2012 but could not be effected because of the Plaintiff's caveat registered as IR 85119/537. Under Section 57(4) of the (repealed) Registration of Titles Act, no transfer could be entered while a caveat remained unless the caveator consented. No notice of removal, order of court, or explanation was produced. The transfer was registered while the court's preservation orders were still in force.

p. 12
03

Whether the Plaintiff proved adverse possession

Holding

Yes; time ran from 29th July 1979 when the Plaintiff obtained his share in Thome Farmers No. 5 Limited, and his open, exclusive, continuous and non-permissive occupation for over 33 years dispossessed the 1st Defendant

Reasoning

The Plaintiff entered and occupied the land, built a permanent house, farmed, and his family resided there for over 20 years. The 1st Defendant denied selling the land, so occupation was non-permissive; it had constructive knowledge of the occupation through the 1992 suit against purchasers from Thome Farmers. The Plaintiff was not a party to HCCC No. 6206 of 1992, so that suit did not interrupt his possession. The requirements in Gabriel Mbui and Richard Wefwafwa Songoi were satisfied.

p. 18
04

Whether the alleged oral sale agreement was valid and enforceable by specific performance

Holding

No; though a pre-2003 oral contract could in principle be admissible under the proviso to the former Section 3(3) of the Law of Contract Act, the Plaintiff failed to prove the agreement and payment of the full purchase price, and the vendor had no title to pass

Reasoning

Section 3(3) as amended in 2003 requires written, signed contracts for disposition of land, but the proviso in the pre-amendment version preserved suits founded on part performance. The Plaintiff alleged an oral contract of February 1975 and took possession, but he did not prove full payment of the purchase price or compelling evidence of the agreement, and Thome Farmers No. 5 Limited was never registered as owner and could not pass better title than it had.

p. 14

Legal principles established

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  • A claim for adverse possession may properly be raised by way of a plaint and is not fatally defective for failure to be commenced by originating summons under Order 37 Rule 7
  • Time for adverse possession begins to run when the claimant's possession becomes non-permissive and adverse to the registered owner's title
  • A transfer registered in contravention of a subsisting court order barring dealings with the suit property constitutes fraud and misrepresentation and defeats a plea of indefeasibility of title

Court orders

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  1. 1.A declaration that the Plaintiff has become entitled to the parcel of land known as L.R. No. 13330/597 by way of adverse possession
  2. 2.An order directing the Chief Land Registrar to rectify the Land Register by cancelling the entry of Alpha Realty Company Limited and substituting it with that of Joseph Njenga Kirunyu as owner of L.R. No. 13330/597
  3. 3.A permanent injunction restraining the 1st and 2nd Defendants from offering for sale, disposing of, transferring, wasting, taking possession of, alienating or otherwise dealing with L.R. No. 13330/597 or any part thereof adverse to the Plaintiff's interest
  4. 4.The Defendants to pay the costs of the suit and the counterclaims
  5. 5.Dismissal of the 1st and 2nd Defendants' counterclaims with costs to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over claims relating to land (adverse possession, specific performance, injunction); not expressly invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kirunyu v Joreth Limited & another (Environment & Land Case 920 of 2012) [2024] KEELC 1150 (KLR)", Case Analysis (2024). Not stated in the judgment (Environment and Land Court suit filed 30th November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1150/eng@2024-02-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.